knocking himself.

6 When the accused opened the door, Jonathan immediately

noticed that SPO1 Ancheta was armed with a gun. Intimidated, Jonathan
SECOND DIVISION began to move away.7 As he left the house of the accused, Jonathan suddenly
heard two (2) shots which prompted him to hide behind the nearest wall. But
G.R. Nos. 138306-07 December 21, 2001 when he looked back the accused SPO1 Ancheta was already aiming his
revolver directly at his face and without hesitation shot him at close
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, range.8 Stunned by the gunshot wound, Jonathan momentarily blacked out but
vs. soon regained consciousness when his neighbor, Leonila Lopez, came to his
SPO1 EDUARDO ANCHETA Y RODIGOL, accused-appellant. aid and rushed him to the Jose Reyes Memorial Medical Center.9 At the
hospital, the slug that pierced his right cheek was removed from his left
shoulder and was subsequently released on 7 September 1993.10
BELLOSILLO, J.:
Leonila Lopez narrated that her house was right across the house of the
This is an appeal from the Decision of the Regional Trial Court Caloocan City
accused, separated only by a narrow alley.11 At around 8:00 o'clock in the
finding SPO1 accused-appellant SPO1 Eduardo Ancheta y Rodigol guilty
evening of 2 September 1993 while she was preparing dinner, she was
of Murder in Crim. Case No. C-44939 and of Frustrated Murder in Crim. Case
startled by the sound of two (2) gunshots coming from the house of the
No. 44940.1
accused. She immediately told her children to go inside and as she was about
to close her windows she saw Jonathan Aromin running towards her house,
SPO1 Eduardo Ancheta y Rodigol2 was originally charged followed by the accused. She then saw the accused shoot Jonathan Aromin on
with Homicide in Crim. Case No. C-44939 and Frustrated Homicide in Crim. the right cheek. After the accused left, she helped the hapless victim and
Case No. C-44940. However, upon motion of private complainant, a brought him to the hospital.12 She was approximately a meter away when she
reinvestigation was conducted and the Informations were amended to charge witnessed the shooting.13
the accused with Murder in Crim. Case No. C-44939 and Frustrated
Murder in Crim Case No. C-44940.
Virginia Ancheta, wife of Julian Ancheta, testified that she and her deceased
husband had two (2) children and that she incurred P54,200.00 as funeral
In the amended Information for Murder, it was alleged that the accused "with expenses for his burial.14
deliberate intent to kill and with treachery and evident premeditation, did then
and there willfully, unlawfully and feloniously shoot one Julian Ancheta y
Dr. Roberto Garcia, a Medico-Legal Officer of the NBI, testified that he
Rodigol on the left temple, thereby inflicting upon the latter serious physical
autopsied the body of Julian Ancheta on 3 September 1993. Julian sustained
injuries, which injuries caused the victim's death."3 On the other hand, in the
three (3) gunshot wounds. One (1) bullet pierced the back of his left forearm
amended Information for Frustrated Murder it was alleged that the accused
and exited in front thereof, another entered the rear left portion of the neck and
"with deliberate intent to kill and with treachery and evident premeditation, did
exited through the right rear portion thereof, while the fatal bullet pierced the
then and there willfully, unlawfully and feloniously shoot with a gun one
front portion of the left ear without an exit wound.15 However, although Dr.
Jonathan Aromin y Cardinez on the right cheek, thus performing all the acts of
Garcia concluded that three (3) bullets hit the deceased, he did not discount
execution which would constitute the crime of Murder as a consequence but
the possibility that the three (3) wounds could have been caused by only two
which nevertheless did not produce it by reason of causes independent of the
(2) bullets as the left arm, being a movable part of the body, might have been
will of the herein accused, that is, due to timely, able and efficient medical
in the way when the bullet exited through the neck of the victim.16
attendance rendered to the victim."4
Police Officer 3 Feliciano Almojuela of the Intelligence and Investigation
During trial, the main witness for the prosecution, Jonathan Aromin, testified
Division, PNP Station, Caloocan City, claimed that in the early morning of 3
that on the night of 2 September 1993 he and his neighbor Julian Ancheta
September 1993 he received a report of a shooting incident at Block 36, Phase
went to the house of the accused who lived just across them.5 Julian told
3-F-1 Dagat-dagatan, Caloocan City.17 Upon reaching the crime scene he was
Jonathan to knock on the door first but when no one answered Julian did the
informed that the slain victim was S/Sgt. Julian Ancheta of the Philippine Air Reyes Memorial Hospital where Jonathan Aromin identified him as the
Force and the suspect was the deceased's brother SPO1 Eduardo Ancheta. perpetrator.31
When he learned that another victim was confined at the Jose Reyes Memorial
Medical Center he went there and found Jonathan Aromin in critical condition. On 26 March 1999 the trial court, giving credence to the prosecution
Thinking that the victim might not survive he immediately interviewed him and witnesses, found the accused guilty of both charges.32 In Crim. Case No. C-
took an "ante-mortem" statement.18 In the afternoon of the same day, the 44939, the accused was found guilty of Murder and sentenced to reclusion
accused voluntarily surrendered himself as well as his service firearm at the perpetua. He was also ordered to pay the heirs of the victim P50,000.00 as
PNP Station in Caloocan City.19 At around 11:00 p.m., PO3 Almojuela brought death indemnity, P54,200.00 as actual and compensatory damages and the
the accused to the hospital where the latter was positively identified by costs. In Crim. Case No. C-44940 the accused was found guilty of Frustrated
Jonathan Aromin as the assailant.20 Murder and was sentenced to ten (10) years of prision mayor as minimum to
fourteen (14) years and eight (8) months of reclusion temporal as maximum.
Dr. Abraham Gonzales, the resident physician at the Jose Reyes Memorial He was also ordered to pay Jonathan Aromin P30,000.00 as moral damages
Medical Center, testified that he was on duty on 2 September 1993 when and the costs.33
Jonathan Aromin was admitted. Upon examination he observed that the victim
sustained a gunshot wound on the right portion of his jaw and no exit wound Accused-appellant, in his brief, raises two (2) points: First, his guilt was not
was visible.21 During treatment, the lead slug was recovered from the left side proved beyond reasonable doubt as the circumstantial evidence presented by
of the neck or from the "trapicious muscle."22 He added that were it not for the the prosecution failed to establish that he intended to kill Julian Ancheta and
timely medical intervention Jonathan Aromin would have died.23 Jonathan Aromin. Second, the court a quo gravely erred in convicting him of
murder and frustrated murder since there was no proof that the killing was
In his defense, the accused claimed that on the night of 2 September 1993 he attended by evident premeditation or treachery.34
was sleeping at home with his wife and son when he was awakened by the
sound of someone banging on his door.24 After a brief silence he heard him The defense of accused-appellant is that the death of Julian Ancheta and the
say: "Pare buksan mo ito." Sensing danger, the accused took his gun from injury of Jonathan Aromin were caused by the accidental gunshots which
under his pillow and ordered the person to identify himself. But the stranger occurred when he and the deceased grappled for the gun. Thus, absent any
just kept on banging the door and insisted that it be opened.25 When he finally intent to kill the victims, he could not be convicted of homicide or murder.
opened the door, he saw his brother Julian Ancheta and his neighbor Jonathan
Aromin. Upon seeing them, he inquired as to why his brother addressed him However, the evidence presented proves otherwise.
as "pare" but instead of answering, Julian Ancheta angrily asked him why he
was holding a gun.26 To appease his brother, the accused lowered his pistol
The autopsy of Julian Ancheta reveals that he sustained three (3) bullet
and explained that the gun was only for protection as he had no idea who was
wounds: one (1) in the rear of the left forearm, another on the left rear portion
banging his door in the middle of the night. He then invited them into the
of his neck and the most fatal one, on the front portion of his left temple.
house, but when he turned around his brother suddenly grabbed his hand from
behind to disarm him.27 As they grappled, the gun accidentally fired twice and
the next thing he saw was his brother sprawled on the ground and Jonathan On the other hand, Jonathan Aromin sustained a gunshot wound on his right
Aromin was nowhere to be found. He never knew what actually happened to cheek which would have caused his death had it not been for the timely
Jonathan Aromin as his back was turned against him when the gun went off.28 medical attention. Based on the number of bullet wounds and the location of
the injuries sustained by the victims it is quite impossible to believe that such
wounds were caused by two (2) accidental gunshots which ensued while the
Confused by the startling events, the accused just took his family to the house
accused and the deceased wrestled for the gun. On the contrary, the location
of his wife's cousin. His wife then convinced him to spend the night with them
of the injuries proves that accused-appellant intentionally shot his own brother
and postpone his surrender until the next day.29 At around 6:00 o'clock
to death and thereafter shot the eyewitness at point blank to permanently
p.m.30 of 3 September 1993 he surrendered at the PNP Station in Caloocan
silence him.
City. After being taken into custody, PO3 Almojuela brought him to the Jose
Further, Jonathan Aromin categorically and positively identified accused- a gun and heard two (2) gunshots prompting him to run and hide behind a
appellant as the person who pursued and shot him at close range. This Court wall.42 Thus, there could be no treachery since prior to the attack the victim
has no reason to doubt his testimony for even accused-appellant admitted that was forewarned of the danger to his life and even managed to flee, albeit
he and the witness were in good terms prior to the incident.35 Neither does this unsuccessfully.43 Consequently, accused-appellant can only be convicted of
Court have any ground to question the veracity of Leonila Lopez's testimony frustrated homicide in Crim. Case No. C-44940.
that she saw accused-appellant shoot Jonathan Aromin as there was no
proved ill motive on her part. Thus, where there is no evidence to show any It must be noted that the testimonies of the witnesses show that accused-
dubious reason or improper motive why prosecution witnesses should testify appellant surrendered himself on 3 September 1993 at the PNP Station in
falsely against the accused or falsely implicate him in a heinous crime, such Caloocan City. For voluntary surrender to be appreciated as a mitigating
testimonies are worthy of full faith and credit.36 Besides, it has been an circumstance the following requisites must concur: (a) the offender had not
established rule that unless the trial judge overlooked certain facts of been actually arrested; (b) the offender surrendered himself to a person in
substance and value, which if considered might affect the result of the case, authority; and, (c) the surrender was voluntary.44 All these requisites were
appellate courts will not disturb the credence, or lack of it, accorded by the trial present in this case as PO3 Feliciano Almojuela confirmed that on 3
court to the testimonies of witnesses.37 We find no reason to deviate from this September 1993, the day after the incident, accused-appellant voluntarily gave
well-entrenched principle. himself up and his service firearm at the PNP Station in Caloocan City.45 Thus,
the mitigating circumstance of voluntary surrender should be appreciated in his
But although we affirm the factual findings of the trial court on the presence of favor.
"intent to kill," we believe that the killing of Julian Ancheta and the shooting of
Jonathan Aromin were not qualified by treachery. Article 249 of The Revised Penal Code provides that the penalty for homicide
is reclusion temporal. There being one mitigating circumstance, namely,
While it was established that accused-appellant intentionally shot his brother voluntary surrender, the imposable penalty is reclusion temporal in its
Julian, the witnesses never saw how the killing started. Treachery cannot be minimum period the range of which is twelve (12) years and one (1) day to
considered where the witnesses did not see the commencement of the assault fourteen (14) years and eight (8) months. Applying the Indeterminate Sentence
and the importance of such testimonies cannot be overemphasized Law, the maximum shall be taken from the minimum of the imposable penalty
considering that treachery cannot be presumed nor established from mere while the minimum shall be taken from the penalty next lower in degree, which
suppositions.38 And where no particulars are shown as to the manner by which is prision mayor the range of which is six (6) years and one (1) day to twelve
the aggression was commenced or how the act which resulted in the death of (12) years.
the victim began and developed, treachery can in no way be
established.39 Hence, without the existence of treachery accused-appellant can Article 50 of The Revised Penal Code provides that the penalty next lower in
only be convicted of homicide in Crim. Case No. C-44939. degree than that prescribed by law for the consummated felony shall be
imposed upon the principal in a frustrated felony. Thus, in Crim. Case No. C-
Neither was treachery established in the shooting of Jonathan Aromin. Two (2) 44940, there also being one (1) mitigating circumstance, the maximum term of
conditions must concur for treachery to exist, namely: (a) the employment of the indeterminate sentence shall be taken from prision mayor in its minimum
means of execution that gave the person attacked no opportunity to defend period, the range of which is from six (6) years and one (1) day to eight (8)
himself or to retaliate; and, (b) the means or method of execution was years, while the minimum term shall be taken from the penalty next lower in
deliberately or consciously adopted.40 Both these circumstances must be degree which is prision correccional, in any of its periods, the range of which is
proved as indubitably as the crime itself.41 six (6) months and one (1) day to six (6) years.

In the case at bar, however, there is no sufficient proof to establish with WHEREFORE, the Decision of the trial court appealed from convicting
certainty that accused-appellant deliberately and consciously adopted the accused-appellant SPO1 Eduardo Ancheta y Rodigol of Murder in Crim. Case
means of executing the crime against Jonathan Aromin. Furthermore, the No. C-44939 and Frustrated Murder in Crim. Case No. C-44940, is MODIFIED.
victim was already aware of the danger as he saw accused-appellant carrying
In G.R. No. 138306 (Crim. Case No C-44939), accused-appellant SPO1
Eduardo Ancheta y Rodigol is found guilty of HOMICIDE and is sentenced to
an indeterminate prison term of six (6) years eight (8) months and ten (10)
days of prision mayor minimum as minimum to twelve (12) years six (6)
months and twenty (20) days of reclusion temporal minimum as maximum. He
is also ordered to pay the heirs of Julian Ancheta P50,000.00 as death
indemnity, P54,200.00 as actual and compensatory damages, plus the costs.

In G.R. No. 138307 (Crim. Case No. C-44940), accused-appellant SPO1

Eduardo Ancheta y Rodigol is found guilty of FRUSTRATED HOMICIDE and is
sentenced to an indeterminate prison term of two (2) years two (2) months and
twenty (20) days of prision correccional minimum as minimum to six (6) years
four (4) months and ten (10) days of prision mayor minimum as maximum. He
is also ordered to pay Jonathan Aromin P30,000.00 as moral damages plus
the costs.

SO ORDERED.

Mendoza, Quisumbing and De Leon, Jr., JJ., concur.

Buena, J., on official business.